Karnataka High Court
Madivalappa Madeppa S/O Mallappa ... vs The State Of Karnataka on 11 June, 2018
1 CRL.A.NO.3670/2011
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF JUNE, 2018
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL APPEAL NO.3670/2011
BETWEEN:
Madivalappa Madeppa
S/o Mallappa Talawar
Age: 50 years,
Occ: Flour Mill Business
R/o Kondaguli, Tq: Sindagi
Dist: Bijapur
... Appellant
(By Sri. Sanjay A. Patil, Advocate)
AND:
The State of Karnataka
Through Police Inspector
Vigilance Police Station HESCOM
Bijapur represented by State Public
Prosecutor, High Court Building
Gulbarga
... Respondent
(By Sri. Maqbool Ahmed, HCGP)
2 CRL.A.NO.3670/2011
This Criminal Appeal is filed under Section 374 (2) of
Cr.P.C. praying to set aside the judgment of conviction dated
09.09.2011 passed by the Special Judge/II Addl. Sessions
Judge, Bijapur in (K) Special Case No.3/2009 and further
may pleased to acquit the appellant of all charges.
This appeal is coming on for Final Hearing this day,
the Court delivered the following:
JUDGMENT
This appeal arises out of the judgment and order of conviction and sentence dated 09.09.2011/13.09.2011 in Special Case No.03/2009 passed by the Special Judge/II Additional Sessions Judge, Vijaypur. By the impugned judgment and order the trial court has convicted the appellant/accused No.1 for the offences punishable under Sections 135(1)(b) of Electricity Act, 2003 and sentenced him to pay fine of Rs.61,452/- and in default to undergo simple imprisonment for six months.
3 CRL.A.NO.3670/2011
2. The appellant is accused No.1 before the trial court. For the purpose of convenience, the parties will be referred to hereafter with their ranks before the trial court. Accused No.1 and 2 were charge sheeted in Crime No.272/2007 of HESCOM Vigilance Police Station, Vijayapura.
3. It was alleged that on 21.05.2007 at 05.00 p.m. accused were found running the flour mill of accused No.1 situated at Kondaguli village of Sindagi Taluka, by illegally tapping the electricity from the main phase by-passing the electric meter MP.16 installed to the said Unit, thereby committed theft of electricity, an offence punishable under Section 135 (1) (b) of the Electricity Act, 2003.
4. The accused appeared before the Special Court. The said Court has taken cognizance. The Special Court on hearing parties framed charge against the accused for the offence punishable under Section 4 CRL.A.NO.3670/2011 135 (1) of Electricity Act and recorded plea of the accused. The accused denied the charges and claimed trial. Therefore, trial was conducted.
5. To substantiate its case, the prosecution examined PWs.1 to 14 and got marked Exs.P.1 to 9 and Mos-1 to 3. After examination under Section 313 Cr.P.C., the accused did not lead any defence evidence. On their behalf, Ex.D.1 was marked by way of confrontation to PW.4.
6. The trial Court after hearing both sides by impugned judgment and order, convicted accused No.1 alone holding that charges are proved by evidence of PW.2 the Police Sub Inspector, Vigilance Police/Raid Conducting Officer, PW.3 to 6 and 12 the members of raiding squad, PW.11 the complainant and PW.13 the then Police Inspector, HESCOM, Vigilance Vijayapur, PW.14 is Police Inspector HESCOM Vigilance, Vijayapur who conducted further investigation. 5 CRL.A.NO.3670/2011
7. The trial Court held that tapping of electricity amounts to un-authorized use of electricity and taking into consideration Ex.P.7 the calculation Sheet for assessing the fine amount, sentenced appellant for the offence as stated supra.
8. Sri.Sanjay.A.Patil, learned counsel for the appellant seeks to assail the impugned judgment and order of conviction and sentence on the following grounds :-
i. Except the official witnesses, none of the independent witnesses have supported the prosecution theory.
ii. There are inconsistencies in the evidence of official witnesses regarding conducting of raid.
iii. Sentence imposed is on higher side and alternatively if sentence is upheld, the appellant shall be permitted to pay the same in installments. 6 CRL.A.NO.3670/2011
9. Per contra, Sri.Maqbool Ahmed, learned High Court Government Pleader submits that except pancha and PW.1, all other witnesses have supported the prosecution case; there is no reason to disbelieve the official witnesses; there is no enmity or illwill in them against the accused to falsely implicate them; the sentence imposed itself is on lower side and Section 126 of Electricity Act, 2003 does not apply. The trial Court having convicted the accused under Section 135 (1) (b) of the Act and sentenced him to pay fine invoking Section 126 of the Act, there is no reason to reduce the fine amount.
10. The case of the prosecution in brief is as follows:
That on 21.05.2007 PW.11 was working as Assistant Executive Engineer HESCOM Vijayapur. PW.2 was working as Police Sub Inspector, HESCOM Vigilance Police Station 7 CRL.A.NO.3670/2011 Vijayapur and PW.3 was working as head constable HESCOM Vigilance Police Station Vijayapur. PW.4, 6 and 12 were constables and PW.5 was Assistant Linemen HESCOM Vigilance Police Station Vijayapur. On the basis of credible information of the theft of electricity, on 21.05.2007 aforesaid witnesses conducted the raid on flourmill of accused No.1 situated at Kondgulli village of Sindagi Taluka. The meter installation of said flourmill was MP.16. During the raid it was found that meter was not functioning. It was found that electricity was tapped directly from the main phase by using four PVC wires to run flourmill by-passing the meter. Accused No.2 was working in the flourmill. The raiding squad inspected the spot and deputed PW.12 to guard the scene of occurrence and left to conduct further inspections in that locality. 8 CRL.A.NO.3670/2011
Then on the same day PW.11 filed complaint as per Ex.P.6. On the basis of same, FIR Ex.P.9 was registered by B.P.Chandrashekhar-PW.13. On the next day i.e., on 22.05.2017, the raiding squad visited the scene of occurrence and conducted the Mahazar in the presence of PW.1 Vishwanath Sidramayya Hiremath and PW.14 Bassavaraj the panch witness and seized the incriminating material Mos.No.1 the Meter, 2 10 HP Motor and 3 PVC Wires. Thereafter further investigation was conducted and charge sheet was filed.
11. The case of the prosecution depends upon the evidence of PW.11 the raid conducting officer/complainant, PW.2 to 6, 12, 13 the members of raiding squad and PW.14 Investigation Officer. 9 CRL.A.NO.3670/2011
12. Accused did not dispute that Accused No.1 was the owner of flourmill in question and Accused No.2 was working in the said flourmill. It is also not in dispute that to the said flourmill, the HESCOM had issued license for supply of electricity through meter MP-16 with 10 H.P. Motor. It is also not in dispute that Mos.No.1 to 3 were taken away from flourmill of Accused No.1.
13. But the suggestion to the witnesses is that no raid was conducted and accused did not draw electricity as contended by the prosecution. It is further suggested that officials of HESCOM used to collect the illegal gratification regularly, since the accused failed to pay illegal gratification, the officials have taken away Mos.No.1 to 3 and fixed them in a false case.
14. Under these circumstances though PW.1 Mahazar witness did not support the proceedings under Ex.P.2, the fact remains that official witnesses have 10 CRL.A.NO.3670/2011 taken away MOs.1 to 3/the installation equipments and PVC pipe allegedly used for tapping the electricity.
15. The Official witnesses have denied the demand of illegal gratification. Further, accused have not taken any steps or filed any complaint against the alleged illegal disconnection of the power or removal of meter or motor Mos.No.1 to 3 from installation. The only discrepancy sought to be magnified was that there is variance in the evidence of official witnesses regarding time of the raid.
16. It is to be noticed that raid was conducted in May-2007. The witnesses were examined before the Court in the year 2010. Having regard to that, the trial Court says that due to fading of the memory due to passage of time, minor inconsistencies occur in the evidence. However, all official witnesses cogently and consistently deposed to the fact of their visit to the installation of accused, theft of electricity and tampering of meter.11 CRL.A.NO.3670/2011
17. For more than three years none of the accused have filed any complaint of demand of illegal gratification or any trespass or theft of Mos.1 to 3. Trial Court taking into consideration such circumstances and conduct on the part of the accused held that malafides alleged by the accused on the part of the witnesses is not probabalized.
18. Accused during their examination under Section 313 Cr.P.C. did not make out any such case of alleged demand for illegal gratification and forcibly taking away the Mos.No.1 to 3. In the cross-examination of witnesses the accused failed to demonstrate why MO- 3 PVC wire measuring 75 feet was found in their premises. Having regard to these facts the trial Court convicted the Accused No.1.
19. So far as accused No.2, the trial Court held that he did not share any animus with accused No.1 in tapping the electricity from the main phase and he was 12 CRL.A.NO.3670/2011 only an employee of accused No.1 and had no role in the crime. Having regard to the facts and circumstances of the case, interference of this Court in the impugned judgment and order of conviction is not warranted.
20. So far as sentence, though accused No.1 was given electricity supply through his meter MO-1, the evidence on record shows that accused had by-passed that by using wire for directly tapping the electricity from main line. That amounts to dishonest drawing of electricity without consent of licensor. Therefore, the trial Court rightly convicted the accused invoking Section 135 (1) (b) of Electricity Act, 2003.
21. However, the trial Court sentenced the accused invoking Section 126 of the Act, which relates to unauthorized use of electricity. There is no dispute that electricity installation of Accused No.1 was of capacity of 10 Kilowatt. Therefore, Regulations 42.06 of 13 CRL.A.NO.3670/2011 Karnataka Electricity Supply Regulations, as on 2007 applies. The said Regulation reads as follows:-
42.06. THEFT OF ELECTRICITY "Amended version vide Notification No.K.R.C./COS/D/07/10 Dated: 1.7.2010 published in Karnataka Gazette dated: 22.7.2010.
(a) (i) Where it is prima-facie established to the satisfaction of the officer authorized by the State Government in this behalf under Section 135 of the Electricity Act 2003 that the person / consumer or his agent, servant etc., has committed / is committing theft of Electricity as indicated in Section 135 of the Electricity Act 2003, Authorized officer shall estimate the value of the electricity thus abstracted, used or wasted or diverted, in accordance with the calculation table:
1 as noted hereunder, for the entire period during which such unauthorized use of electricity has taken place and if, however, the period during which such unauthorized use of electricity has taken place cannot be ascertained, such period shall be limited to a period of 12 months immediately preceding the 14 CRL.A.NO.3670/2011 date of inspection at two times the Tariff applicable to such category of installation and demand and collect the same by including the same in the next bill or in a separate bill pending adjudication by the Special Court. Before including the said amount in the bill, the Authorized officer shall issue a provisional assessment notice indicating the demand to the concerned person within 3 days from the date of inspection informing such person to file his objections, if any, within 7 days and due opportunity shall be given to such person of being heard.
OLD VERSION
(a) (i) Where it is prima-facie established to the satisfaction of the officer authorized by the State Government in this behalf under Section 135 of the Electricity Act 2003 that the person / Consumer or his agent, servant etc., has committed / is committing theft of Electricity as indicated in Section 135 of the Electricity Act 2003, Authorized officer shall estimate the value of the electricity thus abstracted, used or wasted or diverted, in accordance with the calculation table: 1 as noted hereunder, for a period of 12 months preceding the date of 15 CRL.A.NO.3670/2011 detection of the theft of energy or the exact period of theft if determined whichever is less at two times the Tariff applicable to such category of installation and demand and collect the same by including the same in the next bill or in a separate bill pending adjudication by the Special Court. Before including the said amount in notice indicating the demand to the concerned person within 3 days from the date of inspection informing such person to file his objections, if any, within 7 days and due opportunity shall be given to such person of being heard."
22. As per proviso (1) to Section 135 of Electricity Act 2003, where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use - "does not exceed 10 Kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall 16 CRL.A.NO.3670/2011 not be less than six times the financial gain on account of such theft of electricity.
23. As per the Regulation 42.06 the authorized officer shall estimate the fine as per calculation table prescribed therein for the period of 12 months preceding the date of theft of energy at two times tariff applicable to such electricity installation.
24. Based on this rule, PW.11 - Assistant Executive Engineer, HESCOM assessed the fine amount at Rs.93,264/- including 5% tax. However, the Trial Court relying upon Section 126 of the Electricity Act instead of computing tariff for twelve months, computed for six months and arrived at a sum of Rs.20,484/- and computed the fine amount at three times.
25. According to the prosecution itself, this was the first offence. Therefore, the Trial Court applied Section 135(1) Proviso (1) of the Electricity Act in 17 CRL.A.NO.3670/2011 multiplying the financial gain by three times and ultimately imposed fine of Rs.61,452/-.
26. The learned High Court Government Pleader submits that fine should have been computed for twelve months as per regulation No.42.06, as the Trial Court has convicted for the offence punishable under Section 135(1)(b) of the Act. However, the State has not preferred any appeal challenging adequacy of the sentence. Therefore, that argument is not open to the respondent at this stage.
27. So far as contention regarding granting installments for payment of fine amount, the learned counsel for the appellant was not able to point out any of the provision of the Act or regulation which empowers the Court to grant installments for payment of fine amount. Moreover, eleven years have elapsed since the time of the offence. Therefore, the contention that the installments shall be granted deserves no merit. 18 CRL.A.NO.3670/2011
28. Under the circumstances, this Court does not find any ground to interfere with the judgment and order of the Trial Court. Therefore, the appeal is dismissed.
Sd/-
JUDGE sn/KJJ/Srt